State v. Carringer
523 P.2d 532
Idaho
1974
Check Treatment

*1 P.2d Idaho, Plaintiff-Respondent, The STATE of

Harley Lloyd al., CARRINGER et Defendants-Appellants.

No. 10961. Supreme Court of Idaho.

June King, &

Stewart A. Morris of Wiebe Boise, Morris, defendants-appellants. Park, Gen., Anthony Atty. W. William Bruce, Attys. Lee and Ronald F. D. Asst. Gen., Boise, plaintiff-respondent. SHEPARD, Chief Justice. appeal judgment

This an from a against infamous crime imposition and the sentence. questions presented The sole are whether unconstitutionally statute is void ambiguous trial court whether sentencing erred in the defendants. We affirm the convictions and sentences. charged were hav- The defendants with ing against committed an infamous crime nature, a violation provides: against nature —Punishment.— “Crime infa- person guilty Every who nature, against committed mous crime animal, any mankind or with with state punishable years.” than five less entry plea initial Following of an their guilty, moved to with- the defendants *2 930 be pleas to evaluated in the but should

draw their and enter a demurrer abstract particular ground the information on the considered with reference to the subject unconstitutionally conduct of the United States statute was defendants. vague Dairy Corp., v. National Products 372 ambiguous. and That motion was U.S. 29, 594, (1963); Following by jury denied. a trial the de- 83 S.Ct. 9 L.Ed.2d 561 Goguen, J., supra (White, concur- fendants were and each was sen- Smith v. convicted ring in judgment). term tenced and committed for of years. to exceed ten consider required are to We therefore All of giving the facts rise to this action. appellants’ argu- consider first We prison inmates the defendants herein were vagueness. ment that the statute void for incident, at occurred the time of this which Supreme The United has stat- States Court Peni- within the walls of the Idaho State ed: year old tentiary. The victim was a 19 simply vagueness means that “Void peni- had committed to the man who been responsibility not attach criminal should juris- of tentiary day under a 120 retention reasonably where one could not under- 19-2601). aft- weeks (I.C. diction Some contemplated conduct stand that his commitment, er in the eve- his the victim proscribed.” National United States v. other ning persuaded by several hours was 29 Dairy Corp., Products 372 U.S. prison chapel for the to inmates enter the (1963). piano. Aft- alleged purpose playing of Rockford, 408 Grayned City of piano, See also v. briefly playing er the victim was 222, 104, 2294, 83 seized, 92 33 L.Ed.2d stage, repeatedly U.S. S.Ct. dragged to 594, (1972), 9 and Smith beaten, struck, S.Ct. L.Ed.2d 561 with kicked and threatened 4393,-U.S.-, Goguen, v. 42 presence approximately U.S.L.W. of death. In the 1242, It (1974). 94 39 L.Ed.2d 605 S.Ct. the victim twelve other inmates and while be made also stated that reference should to forced being further beaten he was was any judicial authoritative construction of upon several perform the act of fellatio People of State the statute. v. defend- present, Winters the four the inmates there 665, York, 507, of New U.S. 68 S.Ct. he 333 among ants them. While Crawford, acts, 92 L.Ed. 840 v. State those victim forced to commit dis appeal (Mo.1972), anally. 478 S.W.2d 314 was also entered 176, 34 L. missed 409 93 U.S. S.Ct. the defend beyond doubt that It is Ed.2d 66 (1972). very squarely within acts fall ant’s there has uniformly deem it clear that We con core Altwatter, judicial construction years. been authoritative State strued for 58 v. Wall, state and that Lar particular supra; statute v. State supra; State v. years. for 58 sen, such has been uniform supra. Altwatter, Idaho 29

the case of State v. support their only in cite Appellants specifical this court (1916) 157 P. 256 the cases vagueness argument void for against na crime ly statutory that the held State, (Fla.1971), 257 21 So.2d Franklin v. That os.” might ture be committed “per State, (Alaska Harris P.2d v. deci followed determination was clearly to be Franklin believe 1969). We Wall, sions of State v. 73 Idaho at bar. case distinguishable from the Larsen, 81 and State P.2d (1952) “committing adults consenting Therein two denied cert. 1 (1959), Idaho 337 P.2d area in a secluded against nature” a crime 4 L.Ed.2d 80 S.Ct. U.S. officer. police apprehended by were vague if not all (1959). most Supreme Common to the Florida conviction Upon judgment the words principle that ness cases is the Court reversed felony remanded the of a not be should questioned statute sentencing ing That con- as misdemeanors in accordance 18-112. [R.C. § 6312] rejected tention with a statute read: wherein court stated: any commits “Whoever unnatural and section of said “Under person

lascivious act with another [shall *3 6810, is imprisonment fixed the term of punished be as a misdemeanor].” years maxi- not less and the than five pointed Harris, In the Alaska court out is left to the discretion of mum against that the term “crime nature” had court, prescribes the hence that section authoritatively ju- at that time never been punishment offense, and since for said dicially construed in Alaska. Therein the both minimum sen- the maximum and opinion court went on in a monumental to provided by in section tences are fact vagueness. find Alaska’s statute void for expressly fixed the minimum Nevertheless the case was to the remanded and the maximum left to the discretion entry judg- trial court for of an amended court, of the it does within the not come “reflecting ment a for the crime conviction provisions applies of section as it sodomy against and not a crime nature.” only punishment to offenses where no 457 P.2d at 649. prescribed.” sup- is whatever (Emphasis plied) 23 Idaho at 129 atP. As heretofore stated both Harris clearly distinguishable and Franklin are then, Miller, proposi stands for the from case at bar. find the void We present pro tion that 18-6605 vagueness argument appellants vides for both a maximum and minimum to be without merit. Thus, sentence. even if the indeterminate sentence statute abolished the minimum appellants argue The also that the sen- here, by as is appellant sentence contended imposed by tence court er- trial Miller holds that there is a nevertheless They roneous. contend that I.C. 18-6605 § maximum sentence that it is estab specify does not a maximum sentence and by lished the discretion of the court. argue further that since the enactment of Upon op the instant decline the facts we (the I.C. indeterminate sentence § portunity according to overrule Miller and statute) pre- no minimum is sentence ly properly imposed hold that sentence was argue scribed. The defendants therefrom upon the defendant. they that should have been sentenced under pro- I.C. Judgment § of the trial court is affirmed. vides : McQUADE, JJ., DONALDSON and “Punishment for in felony. Except cases — concur. punishment

where pre- a different code, scribed by every offense de- McFADDEN, Justice, dissenting, with felony, punishable clared to be a by BAKES, Justice, whom concurs. imprisonment in the state not ex- ceeding years, by five or fine not ex- majority’s I concur with affirmance $5,000, ceeding or by both fine and such case, judgments of the in this imprisonment.” but I must dissent from the affirmance not less than defendants’ sentences of argument The of the defendant has been years. ten previously disposed by this court in the Miller, majority opinion upon relies decision In re 23 Idaho 129 The P. defendant, Miller, P. In case of In re 23 Idaho 129 (1913). Miller the who having (1913), authority was also for its decision. convicted of committed nature, that against majority opinion to The has concluded crime was sentenced the1 infamous years imprisonment. In it maximum sentence for Miller against is left to the discre- argued punishment also that the maximum crime years, for the fixed cit- tion of the trial crime was at five court. “[ejxcept where a different supra, rea- re in In The court Code, prescribed punishment by Codes although Revised

soned § every be misde- mini- offense declared to only a 18-6605) provided I.C. (now by years punishable meanor is five not less than sentence of mum months, county jail six exceeding infamous crime for the commission by nature, exceeding or a fine not three hundred sentence was maximum against dollars, both,” judi- to or prescribed was left and hence Ailshie dissented cial discretion. Justice merely to a misdemeanor statute which had the ma- questioned from the decision penalty. the minimum three fixed Those Revised apply opinion failing jority Mulkey, cases were 6 Idaho State v. 18-112). (now sec. Codes Rowland, 8 Idaho P. 17 re *4 pun- different “Except in where a Burgess, re 70 P. 610 and In code, every prescribed by ishment Although (1906). Idaho P. pun- felony, a to be offense declared Miller, supra, majority the in stated In re in the state by imprisonment ishable right, it that it considered those decisions years, by or exceeding not five Prison reasoning ignored nonetheless therein. by both exceeding $5,000, or fine not dissenting opinion Ailshie in his Justice imprisonment.” and such fine re- majority concluded that the seemed to stated: Ailshie and in three reasoning verse the rule those Justice dealing cases. at pretense no 6312 makes “Sec. penalty, and so when minimum with the majority opinion in In re Miller was The that, punish- says a different it ‘where on under based the fact that the statute by this prescribed ment is not Code’ charged by its which the defendant im- years’ shall ‘not five penalty exceed However, penalty. a terms fixed minimum fine,’ $5,000 certainly prisonment and it de- opinion, legislature in my maximum means where different stroyed the case supporting the foundation very In the penalty fixed. inde- re it amended the In Miller when sentence, it could have refer- of the See, S.L.1947, terminate sentence law. Ch. penalty only to a ence to a minimum but any min- eliminated 46.1 Such amendment no makes penalty. maximum Sec. 18- After imum sentence. I.C. § pretense being anything at a maxi- but established a previously had which penalty It is neither unus- mum statute. sentence, fix a maxi- minimum did not but one ual nor inconsistent for statute sentence, any valid left without mum penalty fix the minimum to be inflicted In punishment established. term of and'general to fix the another statute situation, gap. fills the 18-112 such I.C. § penalty applicable maximum to all felo- felony, punishment for a It establishes the different, specific nies where a maxi- law, by punishment no is fixed where other penalty prescribed mum by is not statute. ex- prison not at in the state imprisonment just thing That is our statute has un- exceeding years by fine not ceeding or five dertaken to 23 Idaho at do.” $5,000 imprison- or fine and by both such atP. 1077. ment. majority opinion The in In su- re opinion in my majority opinion the In

pra, distinguished previous three cases of relying is in error upon this case applied court which had its supportive re as case of In Miller pro- of Revised Statutes § vided, conclusion. felonies, punishment 46) (S.L.1947, law

1. The Ch. amendment imprisonment period provided: each such minimum * * felonies, hereby period is abolished. “The minimum by See, penitentiary provided I.C. 19-2513. heretofore spite nature of the henious defendants, by crimes committed it is

my specific statutory conclusion that

provisions of established Therefore,

by legislature control. must judgments I would affirm convic- impose but only tion the maximum five year 18- sentence as established

523 P.2d 536 HARPER, Plaintiff-Respondent, Blaine *5 HOFFMAN, L. Robert Defendant- Appellant.

No. 11351. Supreme of Idaho. Court

June 1974. Rehearing July 10, Denied